THEODORE OLSON, Bush campaign attorney: Just one week ago, this
court vacated the Florida Supreme Court's November 21 revision of
Florida's election code, which had changed statutory deadlines,
severely limited the discretion of the state's chief election
officer, changed the meaning of words such as "shall" and "may"
into "shall not" and "may not," and authorized extensive,
standardless and unequal manual ballot recounts in selected Florida
counties.

See more information about the election, including the latest audio from National Public Radio, on Minnesota Public Radio's Campaign 2000 section.

Just four days later, without a single reference to this court's
December 4 ruling, the Florida Supreme Court issued a new,
wholesale, post-election revision of Florida's election law. That
decision not only changed Florida election law yet again, it also
explicitly referred to, relied upon and expanded its November 21
judgment that this court had made into a nullity.

OLSON: The federal question arises out of the fact that the
Florida Supreme Court was violating Article II, Section 1 of the
Constitution, and it was conducting itself in violation of Section
5 of Title 3 of federal law.

KENNEDY: On the first, it seems to me essential to the
Republican theory of government that the constitutions of the
United States and the states are the basic charter. And to say that
the legislature of the state is unmoored from its own constitution
and it can't use its courts and it can't use its executive agency
-- even you, your side, concedes it can use a state agency--it
seems to me a holding which has grave implications for our
Republican theory of government.

---
OLSON: Justice Kennedy, the Constitution specifically vested the
authority to determine the manner of the appointment of electors in
state legislatures. Legislatures of course can use the executive
branch in the states, and it may use, in its discretion, the
judicial branch of the state.

KENNEDY: Then why didn't it do that here?

OLSON: It did not do that here because it did not specify--it
did use the executive branch. In fact, it vested considerable
authority in the secretary of state, designating the secretary of
state as the chief elections official.

And, as we point out, the very first provision in the Election
Code requires the secretary of state to assure uniformity and
consistency in the application and enforcement of the election law.

JUSTICE SANDRA DAY O'CONNOR: But you think then there is no
appellate review in the Supreme Court of what a circuit court does?

OLSON: Certainly, the legislature did not have to provide
appellate review.

O'CONNOR: Well, but it seemed apparently to just include
selection of electors in the general election law provisions. It
assumed that they'd all be lumped in together somehow. They didn't
break it out.

OLSON: Well, there is a breakout with respect to various aspects
of Florida statute and Florida election law. There's a specific
grant of authority to the circuit courts. There's no reference to
an appellate jurisdiction. It may not be the most powerful argument
we bring to the Supreme Court.

KENNEDY: I think that's right.

OLSON: Because, notwithstanding--well, the fact is that the
Constitution may have been invoked...

KENNEDY: Well, this is serious business, because it indicates
how unmoored, untethered, the legislature is from the Constitution
of its own state, and it makes every state law issue a federal
question.

O'CONNOR: I have the same problem Justice Kennedy does,
apparently, which is, I would have thought you could say that
Article II certainly creates a presumption that the scheme the
legislature has set out will be followed, even by judicial review
in election matters, and that 3 U.S. Code, Section 5 likewise
suggests that it may inform the reading of statutes crafted by the
legislatures so as to avoid having the law changed after the
election. And I would have thought that that would be sufficient,
rather than--to raise an appropriate federal question--rather than
to say there's no judicial review here in Florida.

OLSON: I think that I don't disagree with that, except to the
extent that I think that the argument we've presented and amplified
in our briefs is a good argument, it's a solid argument, it is
consistent with the way the code is set up, and it's particularly
consistent with the timetable that's available in presidential
election.

JUSTICE JOHN PAUL STEVENS: And is it critical to your Article II
argument that we read the word "legislature" as narrowly--I mean,
the power granted the legislature as similar to that granted in
Article 5 of the Constitution?

JUSTICE ANTONIN SCALIA: Well, it's pretty close. You can say it
could be interpreted that way by the Florida Supreme Court, I
suppose. Do you think it must be? Or is your point that even in
close calls, we have to revisit the Florida Supreme Court's
opinion?

OLSON: No, I think that it is, particularly in this case, where
there's been two wholesale revisions, major restructuring of the
Florida election code, we don't even get close to that question at
all.

It would be unfortunate to assume that the legislature devolved
its authority on its judiciary sub silentio. There is no specific
reference to it.

But in this case, as we have pointed out, especially the
decision of last Friday, there was a major overhaul in almost every
conceivable way... And certainly it is true that legislatures can employ
the legislative process that might include vetoes by a state chief
executive or a referendum when the state deliberately chooses to
choose a legislative method to articulate a code.

STEVENS: But is it the choice of the legislature or was it
constitutionally limited to this provision? I'm a little unclear on
what your theory is.

Is it your theory, in other words, that they voluntarily did not
permit appellate review of the lower courts in these election
contests or that the Article II prohibited them from allowing
appeal to the appellate?

OLSON: No, Article II, we do not contend that Article II would
prohibit ... In the context of this case, we're saying that they
can include the judicial branch when they wish to do so, but under
no circumstances is it consistent with the concept of the plan in
the Constitution for the state sub silentio, the state legislature
sub silentio, to turn over to the judiciary the power to completely
reverse, revise and change the Election Code in all of the major
respects...

STEVENS: Mr. Olson .. I know you rely very heavily on the
dissenting opinion in the Florida Supreme Court, but which opinion
do we normally look to for issues of state law?

OLSON: Well, I think that the dissenting and the two dissenting
opinions are very informative. We're relying on what the court did.

If one looks at, for example, the recount provisions, before
this revision, under Florida law, manual recount under the protest
provisions were discretionary, completely discretionary, conducted
by canvassing boards during the protest phase of the post-election
period, pursuant to legislatively defined procedures as to who
could be present, for seven days after the election. With respect
to all ballots in a county, that was mandatory and only available,
as we heard last week, for tabulation error up until this election.

OLSON: After the decision of December 8, in this context, those
remand provisions--I mean those manual recount provisions, became
mandatory instead of discretionary; pursuant to judicial rather
than executive supervision, during the contest phase rather than
the protest phase, even though it's not even mentioned in the
statute with respect to the contest phase; pursuant to ad hoc,
judicially established procedures rather than the procedures that
are articulated quite carefully in the statute...

JUSTICE DAVID H. SOUTER: Well, aren't ad hoc judicially created
procedures the point of Subsection 8 of 168? I mean, once we get
into the contest phase, Subsection 8 gives at least to the circuit
court, leaving aside the question of appellate jurisdiction, about
as broad a grant to fashion orders as I can imagine going into a
statute.

OLSON: Well, to read that provision--it's written quite broadly.
One has to read that in the context of the entire statutory
framework. If one reads it the way the Florida Supreme Court did,
the entire process is tilted on its head. Where there used to be
the decision that was in the election officials, it now becomes in
the court. All of the limitations on the remand process that
existed during the protest phase, where the standards should be
lower because it's earlier in the process, are thrown out the
window. The timetables are thrown out the window. The process that
exists are there...

SOUTER: What's the timetable in 168?

OLSON: There's no timetable...

SOUTER: That's right, there is no timetable there, so that seems
to undercut your timetable argument once you get into the contest
phase from the protest phase.

OLSON: Well, I think--but that's only if you untether 168
entirely from the statute and the scheme by which the protest phase
takes place over a period of seven to 10 days in the context of
this election, and the contest phase occurs over the next four
weeks.

SOUTER: It may well be, and I, you know, I will grant you, for
the sake of argument, that there would be a sound interpretive
theory that in effect would coordinate these two statutes, 166 and
168, in a way that the Florida Supreme Court has not done. But
that's a question of Florida Supreme Court statutory construction.

And unless you can convince us, it seems to me, that in
construing 168, which is what we're concerned with now, and its
coordination or a lack of coordination with 166, the Florida
Supreme Court has simply passed the bounds of legitimate statutory
construction, then I don't see how we can find an Article II
violation.

OLSON: Well, I am hoping to convince you that they passed far
beyond the normal limits of statutory construction. The changing of
the meaning...

SOUTER: You've convinced us certainly that there is a
disagreement about how it should be construed, and that
disagreement is articulated by the dissents in the most recent
case, but I don't quite see where you cross the line into saying
that this has simply by
good statutory construction, but I don't see the...

OLSON: It is, we submit, an utter revision of the timetables,
the allocation of...

SOUTER: But, Mr. Olson, we're back to the--there is no timetable
in 166.

OLSON: That's correct.

SOUTER: And what your argument boils down to, I think, is that
they have insufficiently considered--I'm sorry, 168--that they have
insufficiently considered 166 in construing 168. And you may be
right, but you have no textual quote in 168 to say untethered
timetables imply, in effect, a nonjudicial act.

OLSON: We're not just saying timetables. We're saying that it
has wrenched it completely out of the Election Code, which the
legislature very carefully crafted to fit together and work in an
interrelated fashion.

It isn't just the timetable. The fact that there are timetables,
which are very important in a presidential election, we are today
smack-up against a very important deadline and we're in a process
where...

SOUTER: Yes, you are, but that is a deadline set by a safe
harbor statute for the guidance of Congress, and it's a deadline
that has nothing to do with any text in 168.

OLSON: Well, I believe that the Supreme Court of Florida
certainly thought that it was construing--it certainly said so this
time--that it was construing the applicability of Section 5 and it
was expressing the hope that what it was doing was not risking or
jeopardizing the conclusive effect...

SOUTER: And it took that into consideration in fashioning its
orders under Subsection 8.

OLSON: And we submit that it incorrectly interpreted and
construed federal law in doing that because what they have
inevitably done is provide a process whereby it is virtually
impossible, if not completely impossible--and I think it is
completely impossible--to have these issues resolved and the
controversies resolved in time for that federal statutory deadline.
Furthermore, it is quite clear, we submit, that the
process has changed...

SOUTER: Well, if your concern was with impossibility, why didn't
you let the process run instead of asking for a stay?

OLSON: Well, because we said...

SOUTER: You'd find out.

OLSON: Because we argued, and I believe, that there's a very
firm basis that that process already had violated Article II of the
Constitution. It was also already throwing in jeopardy compliance
with Section 5 of Title 3 because the laws had been changed in a
number of different respects and we've recited them. The timetables
are important.

KENNEDY: I thought your point was that the process is being
conducted in violation of the equal protection clause because its
standardless.

OLSON: And the due process clause. And what we know is now the
new system that was set forth and articulated last...

JUDGE STEPHEN G. BREYER: In respect to that, if it were to start
up again, if it were ... totally hypothetically ... and you were
counting just undercounts, I understand that you think that the
system that's set up now is very unfair, because it's different
standards in different places. But what in your opinion would be a
fair standard, on the assumption that it starts up missing the
(December) 12th deadline but before the 18th?

OLSON: Well, one fair standard--and I don't know the complete
answer to that, is that there would be a uniform way of evaluating
the manner in which--there's Palm Beach, for example...

BREYER: All right. A uniform way of evaluating. What would the
standard be, because this is one of your main arguments, you say
intent of the voter is not good enough, you want substandards. What
in your opinion would be the most commonly used in the 33 states or
whatever, or in your opinion, the fairest, uniform substandard?

OLSON: Well, certainly, at minimum, Justice Breyer, the
penetration of the ballot card would be required. Now, that's why I
mentioned the Palm Beach standard that was articulated in writing
and provided along with the ballot instructions to people voting,
that the chad had to be punctured...

BREYER: You're repeating then Indiana. Is Indiana, in your
opinion, or 1990 Palm Beach, are either of those fair? Or what
else?

OLSON: It is certainly a starting point. And...

O'CONNOR: Well, would the starting point be what the secretary
of state decreed for uniformity?

OLSON: That is correct, and...

O'CONNOR: Is that the starting point under the Florida
legislative scheme?

OLSON: I would agree with that, Justice O'Connor.

O'CONNOR: And what standard did the secretary of state set?

OLSON: She had not set one, and that's one of the objections
that we had with respect to the process that the--the selective
process that existed and that we discussed in conjunction with the
November 21 position.

Not only was there not a standard, but there was a change two or
three times during the course of this process with respect to the
standard that I was just discussing.

SOUTER: If this were remanded to the Leon County Circuit Court,
and the judge of that court addressed the secretary of
state--either is or could be made a party--and said, "Please tell
us what the standard ought to be. We will be advised by your
opinion." That would be feasible, wouldn't it?

OLSON: I think it would be feasible. Now, counsel for the
secretary of state will be up in a moment, immediately after me.

GINSBURG: But if we're talking about the contest period, the
statute, as Justice Souter pointed out, speaks with amazing
breadth. It says that, "The circuit judge," this is the text,
"shall fashion any order he or she deems necessary to prevent or
correct any wrong, and to provide any relief appropriate under the
circumstances." I couldn't imagine a greater conferral of
authority by the legislature to the circuit judge.

OLSON: But we submit, in the context of the entire election code
itself. Now, the intent of the voter standard, the one that's been
cited and relied upon by our opponents most, is a provision that's
contained in the provision of the Election Code that deals with
damaged or spoiled ballots.

SOUTER: OK, but we have--there's no question that the closest we
can come now, under Florida law, is an intent of the voter
standard. Is it your position that if any official, judicial or
executive, at this point were to purport to lay down a statewide
standard, which went to a lower level, a more specific level than
intent of the voter, and said, for example, "Count dimpled chads"
or "Don't count dimpled chads," in your judgment would that be a
violation of Article II?

OLSON: I don't think it would be a violation of Article II,
provided that--I mean, the first part of your question...

SOUTER: All right. So if we went from the standard that existed
before, the dimpled chads that hadn't--that that had not been a
standard anywhere in Florida, if that change was made, we would
strongly urge that that would be a violation of Article II, a
complete change...

SCALIA: Mr. Olson, it is also part of your case, is it not, that
insofar as that language just quoted is concerned, the power of the
circuit judge (is) to prevent or correct any alleged wrong? It's
part of your submission, I think, that there is no wrong when a
machine does not count those ballots that it's not supposed to
count.

OLSON: That's absolutely correct, Justice Scalia. It would...

SCALIA: The voters who detach the chads entirely, and the
machine as predicted does not count those chads, where those
instructions are not followed, there isn't any wrong.

OLSON: That's correct. This has been euphemistically referred to
as legal votes that haven't been counted. These are ballots where
the system created by Florida, both with respect to the initial
tabulation and the preferred system for the recount, the automatic
recount in close elections, is to submit those ballots to the same
mechanical, objective scrutiny that the initial count was done. And
those were not counted either because there were votes for more
than one candidate, which would make them overvotes I guess they're
calling them, or that they read as no-vote, which many people do.
Many people do not vote in the presidential election, even those
that are voting for other offices.

SOUTER: But as to the undervotes, and as to the undervotes in
which there is arguably some expression of intent on the ballot
that the machine didn't pick up, the majority of the Florida
Supreme Court says you're wrong. They interpreted the statute
otherwise.

Are you saying here that their interpretation was so far
unreasonable in defining legal vote as not to be a judicial act
entitled, in effect, to the presumption of reasonable
interpretation under Article II?

OLSON: Yes, that is our contention. And that has to be
done--that contention is based upon everything else in the Florida
statute, including the contest provisions. The manual recount
provisions...

WILLIAM H. REHNQUIST, chief justice: Mr. Olson...

OLSON: ... and I'd like to reserve the balance of my...

REHNQUIST: ... is it critical to your position that the Florida
Supreme Court erred in its resolution of the "shall-may"
controversy, in its first opinion...

OLSON: I'm sorry, I missed...

REHNQUIST: Is it critical to your position, because you're tying
the two cases together, that the Florida Supreme Court made that
kind of error in its resolution of the conflict between "shall"
and "may" in this...

OLSON: I don't think it's critical to our--what we're saying is
that what--the court expanded upon its previous decision that was
vacated in this case. It used the time period that it opened up to
do this manual recount to then build upon in the December 8
opinion.

JOSEPH P. KLOCK, attorney for the Florida secretary of state:
... If I could start by addressing a question of Justice Souter
with respect to the standards: 166 does have time limits. The time
limit of 166 is set by the certification, which is seven days after
the election.

The time of the contest, there are time limits there as well.
You have 10 days to file a complaint, 10 days to file an answer.

And in the context of a presidential election, you then, of
course, have the December 12 deadline. So, therefore, there are
time constraints that are there.

BREYER: Which is federal, not state, and occurs in the safe
harbor statute.

KLOCK: Yes, but...

BREYER : Or as a result of the safe harbor statute.

KLOCK: Yes, Your Honor, but this court, in its opinion that it
handed down in the initial Harris case pointed out that it was
clear that there was a desire and a wish by the legislature to
preserve the safe harbor.

BREYER: I thought the Florida court accepted that too in its
current opinion.

KLOCK: They did say that, exactly, Your Honor.

BREYER: Mr. Klock...

REHNQUIST: You refer to the first Harris case. We think of it as
the first Bush v. Gore case. You're talking about the same?

KLOCK: Yes, Your Honor.

SOUTER : Mr. Klock, will you address Justice Breyer's question of
a moment ago? If there were to be a uniform standard laid down, I
suppose at this point by the Leon County Circuit Court, or in any
other valid way, in your judgment, what should the substitute
standard be?

KLOCK: I'll try to answer that question.

You would start, I would believe, with the requirements that the
voter has when they go into the booth. That would be a standard to
start with.

The voter is told in the polling place, and then when they walk
into the booth, that what you're supposed to do, with respect to
the punch cards, is put the ballot in, punch your selections, take
the ballot out, and make sure there are no hanging pieces of paper
attached to it.

The whole issue of what constitutes a legal vote, which the
Democrats make much ado about, presumes that it's a legal vote no
matter what you do with the card. And presumably you could take the
card out of the polling place and not stick it in the box and they
would consider that to be a legal vote.

The fact is, is that a legal vote, at the very basics, has to at
least be following the instructions that you were given and placing
the ballot in the box.

BREYER: No, we're asking, I think, not what the Florida election
law is at this point, in your opinion, but rather if, under the
equal protection clause ... and I'm drawing on your experience as a
person familiar with elections across the country, you've looked
into this...

KLOCK: Yes, sir.

BREYER: ... what would be a fair subsidiary standard applied
uniformly, were it to be applied uniformly across all the counties
of Florida, including Broward, a fair, uniform standard for
undervotes?

Remember, Indiana has a statute, Michigan has a statute, 33
states have a statute where they just say "intent of voter." But
in your opinion, because of the hanging chad, et cetera, et cetera,
what is a fair, not necessarily Florida law, but a fair, uniform
standard?

KLOCK: Without being disrespectful, Your Honor, I think you've
answered the question in terms of phrasing the question. There are
any number of statutory schemes that you could select from, if you
were a legislature. But as a court, I don't think that the Supreme
Court of Florida, respectfully, or any other court can sit down and
write the standards that are going to be applied...

BREYER: In your opinion, if you were looking for a basically
fair standard, to take one out of a hat, Indiana or Palm Beach,
1990, in your opinion would be a basically fair one?

KLOCK: If I were to take one out of a hat, Your Honor, if I was
a legislature, what I would do is I would hold that you have to
punch the chad through on a ballot. In those situations where you
have a ballot where there are only indentations in every race, you
might then come up with a different standard. But the only problem
that we have here is created by people who did not follow
instructions.

BREYER: OK. Can I ask you a different question on Florida law?

KLOCK: Yes, sir?

BREYER: And the question on Florida law is simply this, what the
statute as I take it, the contest statute, lists grounds for
contesting. One of those grounds is rejecting a sufficient number
of legal votes, sufficient to place the election in doubt. And then
the circuit judge is given the power to investigate that
allegation, just to look into it.

KLOCK: Yes.

BREYER: So why would it be illegal under Florida law to have a
recount just to investigate whether this allegation is or is not
so?

KLOCK: The justice's question assumes that they are legal votes.

BREYER: There might be some in there that are legal under
anybody's standard.

KLOCK: Your Honor, if they are not properly--if the ballot is
not properly executed, it's not a legal vote. ... And I would
respectfully suggest that a ballot that is not properly punched is
not a legal ballot. And I think also, sir, if you go through an
analysis of the vice president's arguments and supporting what the
Supreme Court does, there's sort of an omelet that is created by
going and picking through different statutes.

For instance, the clear intent standard comes from a statute
that deals with a damaged ballot where you have to create, to put
through the machine, a substitute ballot. And there are very clear
directions as to what to do to preserve the integrity of the
ballot.